If a child from Canada is abducted to a foreign country, or is not returned from vacation in or a trip to a foreign country, the left-behind parent in Canada faces a challenging process to have the child returned (but there is a legal process available).
Generally, the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention) applies (as of this time).
Canada is a signatory of the Hague Convention, along with the U.S. and about 86 other countries.
The Hague Convention is an international treaty. Co-operating countries have agreed to work together to return children who are wrongfully removed from a signatory country.
The goals of the Hague Convention are: (1) to secure the immediate return of a child wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and access under the law of a signatory country are effectively respected in other signatory countries.
If, for example, a child is removed from Canada unlawfully and taken to the U.S., the parent in Canada would contact the federal government and police (the Central Authority), following which an application would be sent to the U.S. State Department for the return of the child. These government officials are supposed to co-operate to locate the child, have the case evaluated and have a lawyer appointed in the U.S. to petition the Court to order the child to be returned.
Generally, the test for a return order under the Hague Convention is: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign country; (2) the removal or retention was in breach of custody rights under the foreign countrys law; and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful retention.
If this prima facie case is met, the child will generally be ordered returned to Canada, unless the removing parent can establish one of these positions/defences: (1) the child has become well-settled in the new surroundings; (2) the petitioner consented or acquiesced in the removal or retention; (3) there is grave risk of danger to the child in the home country; (4) the child is a mature child who objects to removal; and/or (5) the returning the child would violate public policy.
Even if one of these tests may be established, however, the U.S. Court still could order the return of the child if the Court finds that doing so would better satisfy the goals and objectives of the Hague Convention.
Therefore, if there is a real and reasonable risk that a child may be abducted, or not be returned to Canada from a foreign vacation, caution should be exercised.
In addition, travel consent forms are helpful, particularly to rebut any argument by the removing parent in making these defences to try to keep the child in the foreign country.
